Trust No One, Especially Adam Schiff

Adam Schiff has been in government his entire life. The ranking Democrat on the House Permanent Select Committee on Intelligence has worked as a prosecutor, served one term as a California state senator, and has represented his Southern California congressional district for 18 years and counting. Ina recent column for Esquire, Schiff claimed that President Trump has tried to undermine the checks and balances that protect the FBI from political meddling. It’s an odd claim.

Schiff’s recent conduct puts his truthfulness at issue. In anticipation of the release of the Nunes memo on FISA abuse, Schiff claimed that making the classified document public would pose a national security risk by compromising “sources and methods.” But anyone who has read the now-declassified memo knows that is manifestly untrue.

Now Schiff claims, “Jimmy Carter campaigned for president in 1976 promising . . . he would wall off the Department of Justice and FBI from political influence and direction.” He asserts, “What we have witnessed during the first year of the Trump Administration is a determined effort to demolish the separation between politics and the fair administration of justice—an attempt to turn the DOJ’s investigative powers into the personal political tool of the president.”

Schiff’s claims are misleading at best or at worst, simply false. Two key reforms dating from 1976 are relevant here. One is the 10-year term of the FBI director. The other is the use of the FISA court (FISC) for approving warrants for collecting foreign intelligence against “U.S. persons.”

Congress intended the FBI director’s 10-year term to have a two-fold purpose. First, it fostered greater independence at the FBI to prevent the Bureau from using its surveillance powers against political opponents of an incumbent president, as J. Edgar Hoover had done. Second, it protected the presidency from the FBI director.

The legislative history reflects an important constitutional point. As the Supreme Court ruled in Myers v. United States and Humphrey’s Executor v. United States, the Constitution bars Congress from removing executive power from the president. The president has the right and the unlimited authority to dismiss the FBI director if he so chooses. The Department of Justice and the FBI cannot be “walled off” from the direction of the elected executive because the Constitution says “The executive Power shall be vested in a President of the United States of America.”

Any good that might come from “walling off” the FBI and the Justice Department is subordinate to the principle of self-government which the Constitution embodies—one in which elected officers anointed by the political will of the electorate wield all political power. The independence of any part of the executive branch cannot be a check on the president; rather, it must be a means to fulfilling the president’s duties to faithfully execute his office.

The director’s 10-year term also served to insulate the president from someone who abuses his power. Hoover had done this for 50 years. Thanks to the 1976 reform, if a president lacked the nerve to fire an FBI director (as Lyndon Johnson had with Hoover), eventually the director’s term would expire.

James Comey clearly thought President Trump lacked the courage to fire him before his 10-year term was up. “Like it or not, you’restuck with me,” he said.

Might Comey have believed this because he felt he had dirt on an elected president? The record suggests as much. As soon as Trump fired Comey, Comey leaked FBI property to Columbia University law professorDaniel Richman, who then disseminated confidential and privileged information to the New York Times to damage the president. Contrary to Schiff’s assertions, what Trump did in dismissing Comey furthered the purposes of both the Constitution and the 1976 Crime Control Act by asserting control over a rogue FBI director.

FISC is the second 1976 reform spotlighted in this crisis. Until the 1976 reform, the Supreme Court had done little to enforce the Fourth Amendment’s warrant requirement in the context of foreign intelligence gathering. Because this practice—which allowed the executive to surveil without a warrant in connection with foreign intelligence—had been abused, Congress defined the constitutional limits of this power. Congress established FISC, and required the surveillance of American citizens or legal permanent residents in connection with foreign intelligence to be made by application to the special court for a warrant, which must be renewed every 90 days.

At issue is the abuse of this process. The Nunes memo sets forth certain facts. The gist is that the Justice Department and the FBI used a partisan opposition research document for a FISA warrant application without disclosing to the court its partisan character. Material non-disclosure is an end run around the warrant requirement of the 1976 reform.

In popular opinion, the Fourth Amendment and the Fifth Amendment right against self-incrimination are every day policing concerns. Can police search a glove box for drugs without a warrant or permission? Did police read a suspect her Miranda rights? These are protections against constabulary abuses. As serious as these issues are, the purpose of the constitution’s protections is far more grave. It is to protect against political abuses of criminal justice.

The FISA surveillance is connected to the appointment of Special Counsel Robert Mueller, who has produced two indictments and plea deals against former National Security Adviser Michael Flynn and Trump campaign volunteer George Papadopoulos based on self-incrimination, and another indictment based in part on a pre-dawn, no-knock raid at the home of a 68-year old man, which uncovered crimes unrelated to the scope of the investigation. You don’t need to be a card-carrying member of the ACLU to see the implications on the Fourth and Fifth Amendments here.

Whether this is technically legal remains to be seen. It is positively un-American. But this is what Adam Schiff wants for his country, and therefore I don’t trust him. Neither should you.